Since 1 July 2015, many criminal solicitors have been refusing to take on new legal aid matters leaving defendants unrepresented in court. Does this impact on applications for committal for breaches of anti-social behaviour injunctions? The answer may well be yes.
Some recent cases have highlighted the need for the court to consider whether unrepresented defendants would be entitled to representation. Criminal Legal Aid is available for contempt proceedings. The High Court is authorised to determine whether an individual is entitled to representation; the County Court is not, so if contempt proceedings are in the County Court, then the director of the Legal Aid Agency or the Magistrates’ Court must make the determination.
Where a defendant is facing potential imprisonment and satisfies the financial tests for legal aid – which he or she will if they are on income support, income based JSA or a guaranteed pension – it is likely they will be entitled to legal aid.
If a person is likely to be entitled to legal aid, then the court must satisfy itself that there is a reason why they do not have representation before proceeding to deal with the case, and adjourn if appropriate. This is demonstrated by Brown v Haringey LBC (2015) EWCA Civ 483.
Mr Brown, who was 80 was sentenced to 18 months for contempt of court for breaches of an anti-social behaviour injunction. He successfully appealed to the Court of Appeal. Before the hearing, he had approached a solicitor who quite rightly sought funding from the Magistrates Court. The Magistrates wrongly rejected the application on the basis that it was a civil matter. An application was made to the LAA but no decision had yet been made. Thus Mr Brown came before the court without representation. The hearing proceeded, even into a second day when Mr Brown had been taken to hospital.
The Court of Appeal (who granted representation) held that the judge should have carried out a proper exploration as to why Mr Brown was not represented on the first day and should have adjourned the case. It was held that Mr Brown was clearly entitled to representation. It stressed the need for all involved in committal proceedings in the county court to be aware of the route to be taken in applying for legal aid, and to co-operate in this respect.
A similar argument to the Court of Appeal failed in the case of NFU v Kendal and others (2015), which was heard on 16 July 2015. In this case, the defendant had been imprisoned for breach of an injunction in relation to certain activities he had taken part in against the badger cull. He argued he had not been informed of his right to legal aid, or his right to remain silent and not incriminate himself. The Court held he had been advised that he should seek legal advice and that legal aid should be available for contempt proceedings. The court did not need to look at whether he would in fact have been entitled to legal aid.
The defendant should also be informed that he is entitled not to give evidence (or not to incriminate himself), although the court can draw inferences from this and a warning to this effect needs to be given. This information is included in committal applications. In this case, the defendant had been informed of this choice but the judge had not made his decision on the basis of any such inferences any way.
Those dealing with committal applications should have a basic knowledge of the potential availability of legal aid, and would be well advised to find out whether the defendant wants, or has sought representation. Information about funding should also go in the committal application and it may also be worth putting further information in letters to the defendant so that there is plenty of opportunity for them to seek representation before the hearing, if they can get it.
